Brenda Cossman is a professor of law at the University of Toronto.
Harvey Weinstein is guilty. To be more specific, a jury on Monday found him guilty of a criminal sexual act in the first degree against Mimi Haleyi in 2006 and rape in the third degree against Jessica Mann in 2013.
Mr. Weinstein’s culpability has been a viral concern since the earliest days of #MeToo. Dozens and dozens of women came forward with allegations of sexual assault and sexual harassment. But this case was about five specific charges by two women. Mr. Weinstein was charged with two counts of predatory sexual assault, an alternative count of rape in the first degree, a criminal act in the first degree, and rape in the third degree. He was acquitted of the three most serious charges, but found guilty of two. He faces up to 25 years in jail.
In a New York court, Judge James Burke cautioned the jury not to see the case as a referendum on #MeToo. He is absolutely right; the criminal trial was about the exacting standards of proof that had to be established by the prosecution to find the former Hollywood mogul criminally responsible.
But the trial has been described as a landmark, a watershed, a turning point in the #MeToo movement. The accusations against Mr. Weinstein started the #MeToo ball rolling. How do we not see the trial as a referendum on #MeToo?
Despite widely held views about Mr. Weinstein’s misconduct, the criminal charges brought against him were challenging ones. The two main accusers chosen by the prosecution were women who maintained a close – and sometimes sexual – relationship with him after the fact. These are notoriously difficult cases to prosecute, and accordingly, prosecutors often decide not to. Law has a hard time reconciling the non-consensual with the consensual. If women consented once, they must have consented always. Or conversely, if they didn’t consent once, why would they ever consent again?
Sexual assault trials repeatedly come down to the credibility of the complainants. There are many reasons that women are not believed, but any kind of a continuing relationship with the accused is a big one. And given how common it is for victims of sexual assault to have contact or relationships with their assailants, the Weinstein conviction suggests a change in the post-#MeToo landscape.
But he was not found guilty of the more serious charges, which suggests the jury did not believe all the women. Four other women were permitted to testify about their sexual abuse at the hands of Mr. Weinstein. (The alleged attacks were too old to prosecute under New York’s statute of limitations, but they could, however, be used to establish a pattern of sexually abusive conduct.) The acquittal on these charges, coupled with the questions that the jury had asked during their deliberations, suggest the jury did not believe the testimony of these women. We will never know why.
In the he said/she said, the she was not believed.
One step forward, another step back? A reasonable assessment of the evidence, in light of the due-process requirements? A tie on the trial as a referendum on #MeToo? Maybe. But let’s be cautious about putting all the #MeToo eggs in the Weinstein criminal trial basket.
#MeToo was never first and foremost about the criminal law. #MeToo began as a social-media movement about the pervasiveness of sexual harassment and sexual assault in women’s lives, about broad social change to prevent or redress this sexual violence.
Measuring the relative success of #MeToo through the Weinstein trial might be a little too myopic, even in terms of the law. Law has already had a big role to play. Men such as Mr. Weinstein and broadcasters Matt Lauer and Charlie Rose were fired, and none of these once-powerful men brought successful wrongful dismissal suits. Nor did any of them bring successful defamation suits against the media who reported on their sexual misconduct. Well before the criminal law got involved, there were many #MeToo consequences meted out through the law.
So, yes, Mr. Weinstein has been found criminally responsible for sexual assault. But he has already faced many consequences. He had already been fired from Weinstein Co. He had already reached a US$25-million settlement with more than 30 women who had accused him of sexual misconduct. When we equate the criminal law with all law, we don’t see the full picture.
It’s not over. Mr. Weinstein’s lawyers have announced, unsurprisingly, that they will appeal. In the meanwhile, it is important to reflect on what the trial and conviction does and does not mean.
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